How to Fight a Positive Drug Test in the Military

As a service member, you undoubtedly know the military has a zero-tolerance policy for drug use. The expectation is that if you’re entrusted with protecting and serving your country, you must do so without the influence of illicit substances.

As such, everyone from the newest recruit to the most seasoned general is subject to random, unannounced drug tests at least once a year. Commanders can also order probable cause testing at their discretion. All military personnel must comply with drug testing protocols or face disciplinary action.

It’s a common misconception that you automatically face harsh punishments and forfeit your military career if you test positive on a military drug test. While this happens in some cases, there are many ways to advocate for yourself. Here’s a look at the military drug testing process and how to dispute a positive test result.

How Does Drug Testing Work?

When you are called in for a military drug test, you first write your name or initials on a collection container. Then, an observer stands by to ensure the sample is not faked or contaminated. After you submit the urine sample, the test administrator seals the container to prevent tampering.

Test containers are boxed and taken to a lab for an immunoassay screening, which tests for the presence of drugs. Anyone who handles the samples throughout the collection, packing, shipping, and testing process must sign a chain-of-custody document to create a written record of everyone involved.

Any samples that test positive are rescreened to ensure accuracy. If the test is positive again, the sample undergoes gas chromatography/mass spectrometry to identify the specific substance in the urine. If further testing uncovers traces of a particular drug, but it’s below the specified confirmation cutoff concentration, the test is reported as negative. Positive results have drug concentrations equal to or above the predetermined threshold for military drug abuse testing.

Test results typically take one to five days to come back. Negative results have the fastest turnaround times. The outcomes are often posted on web portals for program managers to see, making a failed drug test impossible to hide.

What Happens if You Fail a Drug Test in the Military?

Every branch of the military has its own substance abuse program, and testing positive has serious consequences no matter where you serve. The outcome depends on whether you’re a new applicant or an active-duty service member.

Military Applicants

People looking to enlist in the military are tested for a range of substances. If you test positive, you can choose to get retested 90 days later if the branch you’re applying for permits it. Since most applicants clear the first screening attempt, you may be asked to explain why you should be allowed to retake the drug test. A second positive result permanently disqualifies you from serving in the military.

Active-Duty Service Members

There are no second chances for active service members. If you test positive, administrative and disciplinary action will ensue. The immediate response is typically to suspend you and refer you to a drug rehabilitation program. Following an initial assessment by a medical professional, inpatient detox may be the recommended treatment. The decision to prosecute your positive drug test rests with your commanding officer.

Punishments for Failing a Drug Test in the Military

The Uniform Code of Military Justice (UCMJ) outlines the elements and punishments for abusing, distributing, and dealing in controlled substances under Article 112A. The consequences vary depending on your service, rank, and what type of drug is uncovered in your sample.

If you test positive for phenobarbital, marijuana, or a controlled substance under Schedule IV and V, you will likely face non-judicial punishment (NJP). This disciplinary action—also known as a captain’s mast or Article 15—is less formal than a court-martial and doles out less severe punishments. Still, you may also be referred to an administrative separation board, which could result in a dishonorable discharge. Other punishments may include forfeiture of all pay and allowances and up to two years of confinement.

If you test positive for “hard drugs”—such as amphetamine, methamphetamine, heroin, cocaine, LSD, opium, secobarbital, phencyclidine, fentanyl, or a controlled substance under Schedule I, II, or III—you may be subject to a court-martial. The maximum punishments include dishonorable discharge, forfeiture of all pay and allowances, and five years of confinement.

How to Fight a Positive Military Drug Test

Failing a drug test doesn’t necessarily mean the end of your military career. The zero-tolerance policy calls for mandatory processing after a positive result, not mandatory separation. With an experienced military attorney to help you formulate a defense, it may be possible to restore your reputation and continue serving your country. Here’s how to challenge a positive drug test in the military.

Dispute the Collection, Handling & Testing Process

Military drug testing is a strict procedure, with detailed and specific instructions from the Department of Defense designed to provide accurate results. Any deviation from these instructions may bring a positive test result into question.

For instance, samples could be mislabeled, mishandled, or improperly tested due to simple human error. If you can provide evidence that the people testing your sample deviated from the standard procedure, you may be able to avoid punishment for a positive drug test.

Demonstrate that You Self-Medicate with Legal Drugs

Some anxiety and depression medications, cold medicines, pain relievers, and dietary supplements mimic the chemical structures of certain banned drugs, resulting in a false positive. In such cases, you could argue that more sensitive testing is needed to differentiate legal medications from illicit substances.

Prove You Unknowingly Ingested the Drug

One of the elements for proving wrongful drug use under the UCMJ is that the accused must consciously use a controlled substance and know that doing so is illegal. If you can prove that you took the drug unknowingly, a case cannot be built against you. Your positive drug test may be accurate, but it is not considered wrongful if your food or drink was spiked or accidental ingestion occurred in another way.

Formulate a Defense with Help from a Military Lawyer

The consequences of failing a drug test can be dire, which is why you need an experienced military defense attorney by your side. Joseph L. Jordan, Attorney at Law, represents service members in all five branches of the military stationed worldwide. As a former Army JAG officer with over a decade of experience as a court-martial lawyer, Mr. Jordan is ready to defend you! We’ll work tirelessly to restore your reputation and minimize the punishment for testing positive on a military drug test.

Call us toll-free at 800-580-8034 or 254-221-6411 today to speak directly with Mr. Jordan about your case.

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